In accordance with article 26.2 of the law 50/1997, of 27 november, the government investigators conduct the procedure for public consultation before the drafting of the text of draft bill amending act no. 20/2003 of 7 july, on the legal protection of Industrial design, to transpose the directive (EU) 2024/2823 of the european parliament and of the council of 23 october 2024, on the legal protection of designs and models.

Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs and Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs established the framework for the protection of designs at Union level in parallel to their protection at national level in the Member States.

Recently, the European Union has issued a new Directive and a new Regulation on designs (Directive (EU) 2024/2823 of the European Parliament and of the Council of 23 October 2024 and Regulation (EU) 2024/2822 of the European Parliament and of the Council of 23 October 2024 amending Council Regulation (EC) No. 6/2002 on design protection in the Member States. These two Directives (EU 2024/2822 amending Council Regulation (EC) No 6/2002 on Community designs and repealing Commission Regulation (EC) No 2246/2002) were created in response to the need to revise this 20-year old protection framework in order to adapt it to the evolution of new market technologies and to make it more accessible and efficient.

The aforementioned Directive (EU) 2024/2823 of the European Parliament and of the Council of 23 October 2024 establishes the obligation for Member States to transpose it by 9 December 2027.

The purpose of the preliminary draft law submitted for public consultation is to incorporate into our domestic law the precepts that must be transposed and to adapt and update the protection of industrial property rights to current needs.

Directive (EU) 2024/2823 aims to modernise and harmonise design protection in the Union, ensuring a competitive and efficient internal market, adapted to today's challenges and with benefits for business, consumers and sustainability. To this end, it introduces new requirements for the protection of designs by the Member States. Many aspects introduced by Directive (EU) 2024/2823 are covered by our current Law 20/2003, of 7 July, but other aspects, which are detailed below, make it necessary to undertake a modification of our current national legislation.

Among other issues, the new Directive establishes that the conditions for obtaining a registered design right must be harmonised in all Member States in order to achieve the objectives of the internal market and, to this end, provides that the unitary definitions of the concepts of design and product must be clear, transparent and up to date. The definition of design is therefore amended to clearly include those that are incorporated into a physical object, or those that are visualised in a graphic or perceived through the spatial arrangement of elements, including within the definition the movement, transition or any type of animation of the characteristics that traditionally could be protected by design.

Also, in order to facilitate the marketing of products with protected designs and to raise awareness of existing design registration regimes, a sign (D) is created to indicate that the design is registered.

A so-called repair clause is established, aimed at preserving the effectiveness of the liberalisation of the after-sales market for spare parts, which consists of not granting design protection to components of complex products that are used for the purpose of repairing the complex product in order to restore its original appearance.

Another of the new features introduced, with a view to preventing the making of illegitimate copies of protected designs in view of the boom in 3D printing, is the provision that the creation, downloading, copying and making available of any support or software that records the design, for the purposes of reproducing a product that infringes the protected design, must be authorised by the holder of the right.

Similarly, in the interests of greater efficiency, the requirement of unity of class is eliminated in multiple applications.

All the aforementioned aspects, among others provided for in Directive (EU) 2024/2823 of the European Parliament and of the Council, of 23 October 2024, will be transposed through the amendment of Law 20/2003, of 7 July.

The need and opportunity to approve this preliminary draft law derives from a legal obligation, as Directive (EU) 2024/2823 of the European Parliament and of the Council, of 23 October 2024, establishes the obligation of Member States to transpose this Directive by 9 December 2027.

The aim of this draft bill will be to transpose into Law 20/2003 the Directive (EU) 2024/2823 of the European Parliament and of the Council of 23 October 2024 and to adapt and update the protection of industrial property rights to current needs.

The following alternatives have been assessed:

1. Drafting of a new Law on the Legal Protection of Industrial Design. Insofar as the current Law 20/2003, of 7 July 2003, is still adequate for its purpose and a large part of its articles are not substantially affected by the new Directive, it is not considered an adequate option.
2. Drafting of the Preliminary Draft Bill to amend Law 20/2003, of 7 July, on the Legal Protection of Industrial Design, to transpose Directive (EU) 2024/2823 of the European Parliament and of the Council, of 23 October 2024. This solution is the right one from the point of view of legislative efficiency.
3. No action. This option would be in breach of the mandate contained in Article 36 of Directive (EU) 2024/2823 of the European Parliament and of the Council of 23 October 2024, which obliges Member States to transpose it by 9 December 2027.

For the above reasons, option (b) is considered to be the most recommendable option.

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